Topic 3: Criminal Courts and Sentencing

Criminal Court hierarchy

Supreme Court (appeal court)

Court of Appeal (appeal court)

High Court (appeal court)

Crown Court (trial court)

Magistrates’ Court (trial court)

Categories of offences Magistrates’ Court deals with (court of first instance)

• Summary offences (least serious offences) - assault and battery

• Triable either way offences (middle-range offences) - S.47 Offences against the Person Act (OAPA) 1861 assault occasioning actual bodily harm, S.20 OAPA 1861 wounding or inflicting GBH, theft

Categories of offences Crown Court deals with (court of first instance + appeal court)

• Triable either way offences

• Indictable offences (most serious offences) - murder, manslaughter, S.18 OAPA 1861 GBH with intent, robbery

Criminal Procedure

1) The suspect is arrested by the police

2) The suspect is interviewed at a police station about their alleged involvement in a crime

3) The Crown Prosecution Service (CPS) decides whether to prosecute, applying the Full Code Test (evidential stage and public interest stage)

4) If charged, the defendant is either

• Released on bail, with or without conditions, pending their court appearance; or

• Kept in police custody and brought before the Magistrates' Court

Summary Offences

• There will be a first hearing at which the defendant (D) will enter a plea of guilty or not guilty

• If D pleads guilty, the Magistrates' Court will proceed to sentencing

• The Magistrates will also deal with issues such as bail and legal aid

• If D pleads not guilty, a summary trial will take place in the Magistrates' Court

Either-way Offences

• There will be a first hearing at the Magistrates' Court, where the defendant (D) will enter a plea of guilty or not guilty

• If D pleads guilty, the Magistrates' Court will decide whether it has sufficient sentencing powers to deal with the case. If not, the case will be sent to the Crown Court for sentencing

• If D pleads not guilty, the Magistrates will decide whether the case is suitable to be heard in the Magistrates' Court or should be sent to the Crown Court

• If the Magistrates accept jurisdiction, D will be asked whether they want a trial in the Magistrates' Court or Crown Court (right to elect trial by jury)

• If D chooses the Magistrates' Court, a trial will take place there. If D elects the Crown Court, the case will be sent there for trial before a judge and jury

Indictable Offences

• The (D) will have their first hearing at the Magistrates' Court

• The Magistrates' Court will deal with initial matters, such as bail and legal aid

• The case will then be sent directly to the Crown Court for trial (sending for trial)

• The defendant will appear at the Crown Court for a plea and trial preparation hearing, where they will enter a plea of guilty or not guilty

• If D pleads guilty, the judge will proceed to sentencing

• If D pleads not guilty, the case will proceed to a trial before a judge and jury

Appeals from the Magistrates’ Court

There are two main routes of appeal:

1) Appeal to the Crown Court:

• D can appeal against their conviction or sentence

• Usually heard by a judge who sits with 2 lay magistrates

• The case is reheard, including the evidence

2) Appeal to the High Court (Case Stated)

• Case stated appeal based on a point of law/error

• Usually heard by 2-3 high court judges

A futher appeal may be made from the high court (Kings Bench Division) to the supreme court with leave (permission). This is available to the prosecution and defence, if there is a point of law of general public importance

Appeals from the Crown Court

There are two main routes of appeal:

1) Appeal to the Court of Appeal

• Both prosecution and defence may appeal

• Defence: Can appeal against conviction and/or sentence. The Court must allow a conviction appeal if it considers the conviction unsafe.

• Prosecution can appeal on the following grounds:

  • Error of law by the judge when explaining the law to the jury

  • Judge's error of law leading to an acquittal

  • Jury nobbling leading to an acquittal

  • New and compelling evidence of the defendant's guilt

  • Unduly lenient sentence

2) Appeal to the Supreme Court

• A further appeal can be made from the Court of Appeal with leave (permission)

• There must be a point of law of general public importance

• The Supreme Court can allow or dismiss the appeal

Sentencing

• The Act for sentencing os the Sentencing Act 2020 which has largely replaced many parts of the Criminal Justice Act of 2003

• The 3 aspects to sentencing is aims, types and factors of sentencing

What are the 5 aims of sentencing?

• Retribution (punishment)

• Deterrence

• Reform / rehabilitation

• Protection of public

• Reparation

Retribution

• Offender deserves punishment for their actions and the judge will pass a sentence that is proportionate to theor conduct

• The Sentencing Council produces guidelines for all the main catergories of offences and judges should not give a lower sentence than the minimum set out in the guidelines

Deterrence

• Individual deterrence: to deter the offender from re-offending through fear of future punishment (e.g. sentences, fines)

• General deterrence: prevent others in society from committing crimes by passing sentences and making examples of offenders to warn others that crime will not be tolerated

Reform / rehabilitation

• Imposing a penalty that can alter the offender’s behaviour and allow them to self-reflect on their wrongdoing

• Goal is to reform their character, rehabilitate them back into society and make offenders conform to community norms (e.g. an offender attends anger management courses to help control their behaviour and prevent future offending)

Protection of public

Protect the public from offenders who pose a risk to society:

• Life imprisonment for murders

• Driving ban for dangerous drivers

Reparation

• Offender is ordered to compensate the victim by paying a sum of money or make a restitution such as returning stolen property

What are the 4 types of sentencing?

• Custodial sentences

• Community Orders

• Fines

• Discharges

Custodial Sentences - most serious sentence

• Assault - up to 6 months

• Battery - up to 6 months

• S.47 OAPA 1861 (ABH) - up to 5 years

• S.20 OAPA 1861 (GBH without intent) - up to 5 years

• S.18 OAPA 1861 (GBH with intent) - up to life in prison

Community Orders

• Rehabilitates D back into society

• House arrest - curfew order

• Have to attend certain classes

Fines

• Financial penalty to the court

• Low level offences e.g. motoring offences

Discharges

• Conditional discharge - discharges defender of the condition that another crime is not committed within 3 years. If the offender re-offends during this period, they can be sentenced for the first offence and the current offence

• Absolute discharge - no punishment is imposed on offender - morally blameless

Both charges result in a criminal record for the offence

Other powers of the Court

• Disqualifying D from driving

• Compensation order

• Forfeiture order - taking certain property from the D - e.g. can of spray paint where the D is guilty of graffiti

Aggravating factors - makes offence more serious and could increase sentence

• Armed with weapon

• Violence used

• Intention to harm

• Repeated behaviour

• Threat to society

• Lack of remorse

• Resisting arrest

• Drugs and alcohol involved

• Concealing evidence

Mitigating factors - makes the offence less serious and could reduce sentence

• No violence

• Plead guilty

• Accident

• Vulnerable state

• Were provoked

• Showed remorse

• Police cooperation

• Age

Pre-sentence Reports - mitigating

• Judge can also request a pre-sentence report to be prepared by the probation service on the offender - background and personal circumstances of the offender, why they committed crime and they feel about the crime now

• Reports are considered by the judge along with all other factors when deciding what sentence to impose